Protect Your Grandchildren In A Medical Emergency

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Today on Aging Insight we talk about some of the issues that come up with grandchildren staying with grandparents. We discuss the legal issues that you may run into if your grandchild or child is in need of medical treatment. It’s common with grandchildren to get into accidents while at a grandparents house that needs a few stitches or some medical treatment. If the parents are off on vacation or they’re even out of the country, there can be an issue. Hospitals have their rules and regulations about who can consent to treatment for a minor child.

Lisa

Welcome everyone to Aging Insight. I'm Lisa Shoalmire. I'm here with John Ross. John and I are elder law attorneys here in our area, and we specialize in the needs and legal issues that relate to seniors and people with disabilities. And, you know, we hope that you really get something out of every Aging Insight, and our purpose is to bring information right to you. And so John, today particularly, I think our topic is perfect for people who are blessed to be grandparents.

John

Absolutely. Yeah, it's summertime, you know the kids are out of school. And, you know, I know when I was a kid, my grandparents had a house on Lake Granbury outside of Fort Worth. And every summer for two or three weeks, my parents got the luxury of getting rid of their rambunctious little red-headed child by sending him out to hang out with Meemaw and Papaw for couple of weeks.

Lisa

Yeah. You thought you were the one that was taking the trip, right?

John

I thought I was on vacation. I was going to the lake. I was gonna get to go water skiing. It was gonna be awesome. But yeah, I think my parents were getting that. Now, as a parent, I see where they were going with that deal.

Lisa

Yeah, so today on Aging Insight, we wanna talk about some of the issues that come up with grandparents. When grandparents are caring for their grandchildren, whether that's on a summertime vacation basis, John, like you talked about, spending two or three weeks with grandma, or even if you provide a lot more care, afterschool care and weekend care for some grandchildren, today we're gonna talk about some of the legal issues you might run into while you're doing that.

John

Yeah. Well, you know, Lisa, to going back and talking about going up there for those summers, you know, as a little red-headed kid, the one thing the first touch of sun does to me every year is turn my skin into a nice tomatoey color.

Lisa

You'd blister, yes.

John

Yeah. So I would almost always manage to get sunburned...

Lisa

Straight up.

John

...straight up. And one year, you know, it was bad. Really bad. Actual blisters, and that involved a trip to the hospital. And of course, here is my grandparents who are having to carry little John up to the hospital to get some medical treatment because I'm in pretty bad shape. I got some pretty deep burns going on. And you get to the hospital and as a child, I cannot consent to my own medical treatment. I was probably six or eight or something, so I can't sign the admission forms and consent to treatment and things like that.

Lisa

True. And it's real common with grandchildren to get into an accident while at a grandparents house that needs a few stitches or otherwise come down with an infection that needs some medical treatment. And if the parents are off on vacation, maybe they're on a cruise, they're even out of the country, that puts everybody into a pickle where the hospital, they have their rules and regulations about who can consent to treatment for a minor child. And, you know,` the grandparents are just hoping to get...they wanna take care of the problem and get their grandchild seen by a medical person. And of course, the kid...you know, they wanna be treated. It can become a real issue, so it's always best to be prepared for these situations.

John

That's right. Now, most people when they think about this sort of stuff, they think about it in the context of an emergency. And in an emergency situation, there are some provisions in the laws that give a priority list of people who can consent to medical treatment on behalf of a minor. And you can generally expect that it's gonna start with the nearest kinship and go from there. So parents of the minor child, if the parents are not available, an adult brother and sister. If they're not available, then some grandparents. And so in an emergency context, there are provisions already in place.

Lisa

Right. And frankly, thankfully, most of the situations we encounter with grandchildren visiting grandparents are not of that emergency nature as defined by the hospital. You know, bites, cuts, ear infections, those things, not emergencies.

John

That's right. And so you're still gonna need some medical treatment. So you've gotta what you need in those circumstances.

Lisa

Right. And so, John, what we're gonna talk about is we're gonna talk about some papers that parents can sign for a grandparent on a temporary basis to give those grandparents rights to seek that medical treatment if the need arises while that grandchild is in the care of a grandparent. So we'll take our break and we'll come back and get into the details of this.

John

Welcome back to Aging Insight, everybody. I'm John Ross here with Lisa Shoalmire, and you're watching Aging Insight which is the program where we bring our knowledge of the legal stuff related to retirement and being older and navigating through all of those years to you so that you don't have any problems out there as you try to make your way. And in light of it being summer and the kids are off on summer vacation and they might be coming to stay with you, well here's what you need to know.

Lisa

Right. So, you know, we were talking before the break about the idea that, you know, if grandchildren are staying with you, maybe their parents are off on vacation and these grandchildren are with you for a week or two, that there might be a situation that comes up where you need to get healthcare treatment for those grandchildren. And during our first segment, we talked about how as a grandparent, you have absolutely no right to consent to medical treatment for your grandchild. And, you know, John, I think this is something that a lot of grandparents don't realize.

John

Right. You know, you don't really think about it necessarily. You're like, "Yeah, I'm the grandparent. I got the kids here. I should be able to do whatever."

Lisa

And so basically, the state of our law is that grandparents actually have almost no rights of any kind when it comes to a grandchild.

John

Right. This all relates back to a Supreme Court case.

Lisa

The Trotter Case.

John

Yeah, decades ago. But basically, that Trotter Case by the Supreme Court said that parents' rights are essentially absolute.

Lisa

Correct.

John

And so they just don't extend beyond to the grandparents. And so, yeah, there's just no rights there. So because of that, you know, there's some things you need. And, you know, we think about this in our own context all the time. If I became incapacitated and I was at the hospital and I cannot communicate my wishes to the hospital staff, I know that somebody...I need to appoint somebody to handle that sort of thing. And this is the same concept.

Lisa

Right. But we just don't think about it with grandchildren. So when it comes to making medical decisions and giving consents regarding medical treatment for grandchildren, you as a grandparent, you have no legal right to make such decisions. Therefore, you need to make sure that the parent has provided you with the written consents for you to make medical decisions on behalf of that minor grandchild while the parent is not available. And in order to--the number one, John--this is something that's gonna need to be in writing...

John

Absolutely.

Lisa

....because obviously, a hospital personnel...I mean, if you could just say, "I'm the grandparent, and the parent said it was okay," then, you know, they're just not gonna buy that. So this is something that has to be in writing. And this is something that we usually call it a temporary healthcare power of attorney regarding a minor.

John

That's right. And so, yeah, this is the parent signing something that says, "Here are the people that I authorize to consent to medical treatment on behalf of my child." Now, you know, Lisa noted that it was temporary. And that's because typically with this sort of thing, you're gonna limit the duration in the document. You know, now, if I'm doing a medical power of attorney for myself, well, I don't have any idea when I might need that. But if I'm appointing Lisa, for example, well, I don't ever want that thing to expire, you know, because I might get sick tomorrow or I might get sick in 10 years. But whenever it is, I need that person to be able to step in and make medical decisions.

Lisa

Sure. Or Granny and Granddad are there and they are the pickup for every day after school.

John

Yeah, they're involved with the children every single day of the week. Unlike...like when I was a kid, I saw my grandparents for the two weeks in the summer and at Thanksgiving and at Christmas. And maybe on my birthday, you know? But other than that, you know, three, four times a year. And so it would only make sense in those cases maybe to just have it in those limited circumstances while I was there, particularly while I was there without my parents.

Lisa

Right. And, you know, these days, we do have a lot of parents...I mean, just in the past few weeks, I have visited with a number of families where the parents are actually going out of the country or they're going to be on a cruise ship, and they are just absolutely going to be unreachable in the case of an emergency. So leaving the children with the grandparents, they definitely wanna have that writing that gives consent to the grandparents to take the child for treatment. And in this case, I believe all the folks I've spoken with, they are going to put the dates that they're gonna be out and that the grandchildren are gonna be with the grandparents as part of their consent.

John

And within the same docket, you can also limit...so for example...and I'm not saying that parents and their kids don't always see eye to eye, but it has happened in the past, I'm sure. But there could be...for example, if you're that parent that's planning on leaving the kids with your own parents, you know, leaving your kids with their grandparents, maybe you do have a difference of opinion on certain medical procedures.

Lisa

Right. We've seen this come up before with certain procedures such as immunizations. There are certain parents who have foregone immunizations or maybe delayed immunizations. And here on Aging Insight, we are certainly not gonna try to visit the science or the strategy of doing that. But if a parent and a grandparent have different attitudes about something like that, you know, a parent can actually limit that medical power of attorney so that the grandparent cannot go and obtain a bunch of immunizations for that grandchild while that grandchild is in their grandparents' care.

John

Right. So you can limit it if there's a reason or if you feel like there's something that maybe you don't want in there. Now, in addition to being able to make medical treatment decisions, a grandparent might also need access to medical records. So, for example, if little John who's had this bad sunburn and now I'm at the hospital. And so, okay, so yeah, my grandparents have a medical treatment consent form. They've presented that to the hospital. The hospital is now treating me for my burns and the hospital say, "Well, you know, grandparent, does John have any allergies?"

Lisa

Sure. Or, "When was your last tetanus shot?"

John

Or, "When was your last tetanus shot?" Or something like that. And my grandparents may not know that. But they might/could call my family practice doctor back home. The problem is if you call to get a copy of somebody else's medical records, you're gonna run into a fun little law called the Health Insurance Portability and Accountability Act.

Lisa

So yes, HIPAA rears its head again. So...well, let's take a break and we'll come back and talk about HIPAA. And also, we'll talk about some things for these grandparents that are day in and day out with their grandchildren, maybe some school records and things like that. So stick with us.

John

That's right. And unfortunately, or fortunately depending on how you look at it, you know, our medical information is protected by a law called the Health Insurance Portability and Accountability Act, which most people know as HIPAA. HIPAA says that nobody can look at another person's medical information without their signed written permission. And when I say nobody, I mean nobody. Not a spouse, not a parent of an adult, not anybody. And so in our situation that we're describing here where this minor child has had an accident and maybe the grandparent needs to obtain some information related to past medical care or get a copy or call their home doctor and find out when they got their last tetanus shot, you know, all of that is protected medical information which cannot be provided under the HIPAA law to an unauthorized source.

Lisa

Right. And besides those accidents and illnesses that can pop up during that summer visit with grandma, you know, kids aren't the most responsible. So kids can lose that inhaler they need for asthma. You know, maybe they didn't bring their EpiPen for severe allergies. And maybe that grandparent needs to obtain those medications while the parent is gone on vacation or out of touch. And so this consent form and these HIPAA releases are gonna be absolutely necessary in order to do that.

John

Yeah. And again, these things can be limited by time. So it doesn't have to be a blanket release forever and ever. It can be limited to that period where the child is gonna be with the grandparents.

Lisa

Right. And the other point to make, John, is these days, you know, sometimes your grandchildren are coming to visit. Maybe their parents are divorced. And so so long as a parent who has the right to make medical decisions for that child...you know, it doesn't have to be both parents signing on that form so long as one parent who has those medical decision rights signs that form in favor of the grandparents.

John

That's right. And this is good advice. Now, as we reach the end of the show, there's kind of one other situation. And this is the really bad one that certainly hope never happens, but there's always the possibility that you've got the grandkids and you're waiting for the parents to come back home and they don't.

Lisa

You know, John, these days, just like my clients that are traveling, they're traveling to Europe and overseas. And it's a pretty bad world out there. And so they're worried about...they don't expect anything bad to happen, but they are planning in case it does. So if a parent doesn't return because they themselves die in an accident or some sort of event, well, now what?

John

Because one thing a lot of people don't realize is, for example, if I have given my parents the authorization to make medical decisions for my child, that document is only valid as long as I as the parent remain competent and alive.

Lisa

Sure.

John

But if I die or have such a catastrophic injury that I've lost my abilities altogether, that has also essentially revoked that same document. In which case we're gonna have some more issues here.

Lisa

Yeah. So the other thing a parent ought to consider is they ought to consider signing a form called a designation of guardian for minor children if the need arises. And this designation of guardian is a form that the parent signs that says, "Hey, if I'm deceased or I'm in a catastrophic accident and I'm in a coma and I cannot care for my children," this form is the parent speaking and saying, "I want grandparents to be guardian of my children in that event." And so this document...there's no automatic designation just because you're a grandparent. Once again, we get back to the point that a grandparent has no rights, no priority. And so once again, a parent should designate, if they wish, that grandparent to be the guardian of their minor children if that catastrophe ever happens.

John

Right. It'll still probably involve a court process to get an actual guardianship of the minor child in place. But having that designation of guardian is essentially gonna make that process as smooth and easy as it can be because it tells the judge in advance who the parents trusted. And so anybody with a minor child should have a designation of guardian in place for those minor children. And even if it's not you, if you're gonna be in charge of those kids while the parents are off doing their thing, you ought to at least know who those designated guardians are in the event of that catastrophe so that you can reach out to them and they can begin the guardianship process because child's needs don't stop just because something bad happened to the parent.

Lisa

Sure. And the other thing is a designation of guardian form, it can be changed at any time. So maybe while your children are younger and the grandparents are younger, that's who you want designated. But maybe as the children get older and the grandparents get older and maybe have their own health challenges, maybe you wanna change that designation of guardian to someone else.

John

That's right. Well once again, you've hung out with us for a solid half hour and hopefully learned a few things. If you want more, you can always check out our Aging Insight radio show on 98.7 FM every Saturday at noon. You can pick up a copy of our "Aging Insight" Magazine available at your doctor's office, or even by swinging by our office over at Ross & Shoalmire. You can even check out our website, aginginsight.com, or you could just stick around until next week for another episode. See you then.

Lisa

Bye-bye.

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